HASSAN MUHAMMAD vs THE STATE
This appeal challenged a Lahore High Court judgment that maintained the appellant's conviction under Section 302 of the Pakistan Penal Code 1860, despite the High Court's finding that the incident was a sudden affair without premeditation. The core legal question was whether the High Court, having concluded the incident lacked premeditation, was justified in maintaining a conviction for murder (Section 302) rather than culpable homicide not amounting to murder (Section 304). The Supreme Court held that since the incident was a sudden fight where the appellant did not take undue advantage or act in a cruel manner, Exception IV to Section 300 of the Pakistan Penal Code 1860 was clearly attracted. Consequently, the Court altered the conviction from Section 302 to Section 304, Part I, of the Pakistan Penal Code 1860. The principle laid down is that where a homicide occurs during a sudden fight without premeditation, and the accused does not act in a cruel or unusual manner, the offense falls under the exception to murder, necessitating a conviction under Section 304, Part I, rather than Section 302.
- Does a sudden fight without premeditation where no undue advantage is taken fall under Exception IV to Section 300 of the Pakistan Penal Code 1860?
- Can a conviction under Section 302 of the Pakistan Penal Code 1860 be altered to Section 304, Part I, if the court finds the occurrence was a sudden affair?
- Is a single blow to a deceased sufficient to negate the 'cruel or unusual manner' requirement in Exception IV to Section 300 of the Pakistan Penal Code 1860?
- Section 148, Pakistan Penal Code 1860
- Section 300, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 304, Pakistan Penal Code 1860
- Section 307, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
' MUHAMMAD RAFIQ TARAR, J.---This appeal by Hassan Muhammad with the leave of this Court is directed against the Judgment of a learned Division Bench of the Lahore High Court dated 6-4- 1987.
2. The appellant alongwith five others was tried by the learned Additional Sessions Judge on the allegation that on 27-4-1983 at Assar Wela he and his co-accused formed themselves into an unlawful assembly with the common object of committing the murder of Saif Ali alias Malooka deceased and for making murderous assault on Amanat and Mst. Allah Wasai P.Ws. And in prosecution of that common object of the said unlawful assembly to have actually committed the murder of Saif Ali alias Malooka and made murderous assault on the aforesaid P.Ws. By judgment dated 30-5-1985, the learned Additional Sessions Judge, convicted all of them under sections 148, 452, 302 and 307/149, P.P.C. The appellant was sentenced to R.I. For 2 years under sections 148, P.P.C., R.I. For 3 years and a fine of Rs,2,000 under section 452/149, P.P.C. And R.I. For 10 years and a fine of Rs,1,000 under section 307/34, P.P.C. For the murder of Saif Ali alias Malooka, he was sentenced to death. His sentences of imprisonment were to run concurrently in case his death sentence was not confirmed by the High Court. On appeal, the conviction of the appellant under sections 302 and 452, P.P.C. Was maintained but his sentence on the latter charge was reduced to imprisonment for life on the ground that it was 'a sudden affair without pre-meditation'. His conviction and sentence under section 148, P.P.C. Was set aside.
3. Leave to appeal was granted only to examine the contention that after holding it to be 'a sudden affair without premeditation', the High Court was not justified in maintaining conviction under section 302, P.P.C. As at best it was a case under section 304, P.P.C.
4. We have heard the learned counsel for the parties. The learned counsel for the appellant has reiterated the submissions made at the leave granting stage and drawn our attention to the following observations made by the High Court in the impugned judgment:- "Keeping in view the evidence on record, we are of the considered view that the occurrence took place without premeditation. The fact, of Mansab Ali son of Noor Muhammad grazing the cattle, is admitted by both sides. It is further accepted by both sides that the incident originated because of said Mansab Ali (who has not been produced in Court). It appears that Mansab Ali was given one or two slaps by the complainant side and the accused persons who have land nearby came to the Dera of Hadayat Ali in order to rescue Mansab Ali. Without any premeditation, a sudden fight developed for which each person would be responsible for his act."
' The learned State counsel has not been able to point out any infirmity in the conclusions arrived at by the learned Judges of the High Court which are rather clearly inferable from the evidence on the record.
5. The conviction of Hassan Muhammad appellant herein under section 302, P.P.C. Was maintained as he was responsible for causing the fatal blow to the deceased. His sentence, as already stated above, was reduced to imprisonment for life on the ground that it was a sudden affair without premeditation. The appellant gave only one blow to the deceased and Cannot be said to have taken any undue advantage of the situation or acted in a cruel or unusual manner, therefore, Exception IV to section 300 of the P.P.0 is clearly attracted in his case. We, therefore, alter his conviction from section 302, P.P.C. To section 304, P.P.C. Part I, P.P.C. At this stage it need by mentioned that the judgment of the High Court is silent about his conviction under section 307, P.P.C. However, the High Court having held it to be a case of individual liability, it can be inferred that he was acquitted of the said charge as he did not cause any injury to any of the injured P.Ws.
6. This brings us to the question of sentence. The appellant was arrested on 29-5-1983. He remained in jail as under-trial prisoner till 30-5-1985 when he was convicted by the Trial Court.
Thereafter, he remained confined as a convict till 3-7-1991 when he was allowed bail by this Court.
Mr. Aftab Farrukh learned counsel for the appellant affirms this position. Thus, the appellant remained in jail as undertrial for two years and has undergone R.I. For a period of more than six years. In the circumstances, we feel that the term of imprisonment already undergone by him is sufficient to meet the ends of justice and we . He is on bail. He shall be discharged from his bail bonds.